A Study On Arbitral Tribunal’s Authority

Arbitral tribunal directly determines the quality of an arbitral award. The scope of arbitral tribunal’s power is closely related to whether the tribunal could steer an arbitration procedure properly. For this reason, a sufficient scope of arbitral authority and a proper exercise of arbitral authority is crucial to achieve the values of arbitration, namely freedom, efficiency and justice. However, compared to international commercial arbitration practice, Chinese arbitral authority still encounter several problems: a narrow scope of arbitral authority, an excessive intervention of the court in arbitral proceedings and an ambiguous power boundary between the tribunal and arbitration commission in China. These problems have a negative impact on the function of arbitration in China.A narrow scope of arbitral authority is detrimental for the tribunal to steer an arbitral proceeding properly. However, an arbitrator should not have unlimited powers, either. Arbitration is a private proceeding with public consequences. Too much power possessed by the tribunal is against the contractual nature and non-govermental feasure of arbitration. On the basis of the nature of arbitration and the sources of arbitral authority, I propose that respect for party autonomy, in compliance with the mandatory rules and persue to efficiency and justice value shall be the criterias to determine the rational scope of arbitral authority in China. In other words, party autonomy shall be respected unless relevant mandatory laws provide otherwise. And on the premise of protecting due process, arbitral tribunal may adopt any meature to pursue the efficiency value of arbitration.What is more, in the perspective of the legislation authority, the national courts and the arbitration commissions in China, the author proposed how to support and enforce the arbitral authority in practice. With respect to the legislation authority in China, arbitration law should confirm arbitral tribunal’s authority in competence-competence, granting interim measure and the dicretion in arbitral proceedings. With respect to the national court, the national court of China should decrease the excessive judicial intervention in arbitral proceedings. National court of China should narrow down the scope of judicial intervention and delay the timing of judicial intervention. Instead of intervention, the national court should explore ways to support arbitral tribunal and help the tribunal to maintain independent position in arbitral proceeding. With respect to the arbitration commission, Chinese arbitration commission should change its role to adapt to the new development of international commercial arbitration. It is advisable for the arbitration commission in China to play more of a purely facilitative role in the arbitration proceeding. In addition, Chinese arbitration commission should also explore how to conduct the administrative reformation and decrease the potential governmental influence on arbitration institution. The arbitration commission should guarantee the independent position of the arbitral tribunal.